Bill Summary for H 881 (2015-2016)

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Summary date: 

Apr 20 2015

Bill Information:

View NCGA Bill Details2015-2016 Session
House Bill 881 (Public) Filed Tuesday, April 14, 2015
AN ACT TO ALLOW FOR SEVERANCE OF SUMMARY EJECTMENT AND MONETARY CLAIMS IN SMALL CLAIMS ACTIONS WHEN SERVICE OF PROCESS ONLY MEETS SUMMARY EJECTMENT STANDARDS AND TO ALLOW FOR THE SEVERED MONETARY CLAIM TO BE CONTINUED WITH ALIAS AND PLURIES SUMMONS AND TO PROVIDE FOR AN ELECTION BY THE PLAINTIFF TO UTILIZE A PRIVATE PROCESS SERVER IN COUNTIES WITH POPULATIONS OF TWO HUNDRED THOUSAND OR GREATER.
Intro. by Jordan, Bryan, Earle.

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Bill summary

Enacts new GS 7A-223(b1) providing that the plaintiff can request that a claim for summary ejectment be severed from the claim for monetary damages in regards to a small claim action demanding summary ejectment and monetary damages where service of process was achieved solely by first-class mail and affixing the summons and complaint to the premise pursuant to GS 42-29. Requires the magistrate to sever the claim for monetary damages and proceed with the claim for summary ejectment after finding that personal service was not achieved for one or more defendants. Provides that if severed by the magistrate, the plaintiff can extend the action in accordance with GS 1A-1, Rule 4(d). Provides that the judgment of a magistrate in the severed claim for summary ejectment does not prejudice any claims or defenses of any party in the severed claim for monetary damages.

Amends GS 1A-1, Rule 4(h1), regarding the return of a summons or other process unexecuted, to delete provision that this subsection does not apply to summary ejectment actions under Article 3 of GS Chapter 42.

Enacts new subsection (b) in GS 42-28 (Summons issued by clerk) to provide that in counties with a population of 100,000 or more as of the most recent 10-year federal census, after the summons is issued by the clerk pursuant to a claim by the landlord-plaintiff (plaintiff) under GS 42-26 or 42-27, the plaintiff may choose to either have the clerk return the summons to the plaintiff or forward it to the sheriff for service. Provides that if the magistrate severs the claim for monetary damages as provided under GS 7A-223(b1), the plaintiff may choose to extend the action under GS 1A-1, Rule 4(d).

Under current law, GS 42-29 provides that an officer receiving a copy of the summons must mail the summons and a copy of the complaint to the defendant no later than the end of the next business day or as soon as practicable to the defendant's last known address. Enacts new subsection (b) to GS 42-29 (Service of summons) toprovide that in counties with a population of 100,000 or more as of the most recent 10-year federal census, andonly with respect to service for summary ejectment proceedings, officermeans either (1) any person over the age of 21 who is not a party to the action and who is hired by the plaintiff or the plaintiff's agent or attorney to serve the summons and complaint for summary ejectment or (2) the sheriff of the county where the property is situated.

Effective October 1, 2015.